H.E. NO. 84-38

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF AVALON,

Respondent,

-and-	Docket No. CO-82-122-99

LOCAL 1983, CIVIL AND PUBLIC EMPLOYEES

OF CAPE MAY COUNTY, NEW JERSEY, IBPAT,

AFL-CIO,

Charging Party.

Appearances:

For the Respondent, Fineberg & Rodgers, Esqs.

(Robert A. Fineberg, Esq.)

For the Charging Party, Gorman & Goodkin, Esqs.

(Bruce D. Gorman, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On November 30, 1981, Local 1983, Civil and Public Employees of Cape May County, New Jersey, International Brotherhood of Painters and Allied Trades, AFL-CIO ("Charging Party") filed an Unfair Practice Charge with the Public Employment Relations Commission (the "Commission") alleging that the Borough of Avalon ("Borough" or "Respondent") committed unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"). The Charging Party asserted that the Respondent discriminated against members of the Charging Party by affording non-union employees holidays not given to members of the Charging Party, allegedly in violation of N.J.S.A. 34:13A-5.4(a)(3).1/

It appearing that the allegations of the Charge, if true, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued by the Director of Unfair Practices on May 22, 1983.2/ Pursuant to the Director's order, a hearing was held before the undersigned on July 26, 1983. At the hearing, the parties elected to stipulate the facts of this matter pursuant to N.J.A.C. 19:14-6.7. A brief was submitted by December 12, 1983.

Upon the entire record the Hearing Examiner finds that:

1.	The Borough of Avalon is a public employer within the meaning of the Act, and is subject to its provisions.

2.	The Local 1983, Civil and Public Employees of Cape May County, New Jersey, International Brotherhood of Painters and Allied Trades, AFL-CIO is an employee representative within the meaning of the Act and is subject to its provisions.

3.	An Unfair Practice Charge having been filed with the Commission alleging that the Borough has engaged in unfair practices within the meaning of the Act, questions concerning the alleged violation of the Act exist and are appropriately before the undersigned Hearing Examiner for determination.

4.	The parties stipulated the following facts:

A)	Blue Collar employees had always heretofore worked on the November Election Day.

B)	Prior to the 1981 White Collar Contract, White Collar personnel (represented by the Charging Party) had always had the November Election Day off pursuant to Borough Ordinance (Exhibit J-1).

C)	November Election Day was not a holiday for Union personnel pursuant to the Borough Administrator's memo of 10/27/81 (Exhibit J-2). According to that memorandum, employees were required to take a vacation day or a personal day if they wanted a day off.

D)	Eight white collar employees were affected.

E)	Approximately 14 management employees had the day off in Borough Hall. Of the eight white collar employees, only four of them worked in Borough Hall. There was a 14 to 4 ratio of management versus union employees in the Borough Hall.

F)	White collar negotiations for 1982 were about to be reopened.

G)	All affected union personnel took a personal day or vacation day.

Analysis

In East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (App. Div. 1981), the Court established standards for determining whether an employer's motivation makes a personnel action illegal under out statute.3/ The Charging Party must first establish that the protected activity was a substantial, i.e., a motivating factor in the employer's adverse action. If the Charging Party meets this burden, the employer will be found to have violated subsection 5.4(a)(3) of the Act unless it can establish by a preponderance of the evidence that the personnel action would have taken place even in the absence of the Charging Party's protected activity. Of course, should the Charging Party fail to meet its initial burden, the complaint must be dismissed. Fair Lawn Board of Education and Raymond Grosiak, P.E.R.C. No. 84-46, 9 NJPER 665 (¶14288 1983).

In the instant matter, the Charging Party alleges that the Borough violated subsection 5.4(a)(3) of the Act by granting a holiday to non-union employees which employees represented by the Charging Party did not enjoy. The charge itself is unclear as to the alleged protected activity which would have been the motivating factor for the Borough's action; however, it appears that the Charging Party is alleging that its existence as an employee organization which negotiated a collective agreement with the Borough is its protected activity, and that the existence of the Charging Party as an employee representative was a motivating factor in the Borough's personnel action with respect to non-unit, non-unionized employees. So construed, the charge suggests that the conferral of benefits by a public employer to non-unionized employees, when unionized employees do not enjoy such benefits, may discourage the unionized employees in the exercise of their rights under the Act by creating the inference that greater benefits will be enjoyed by employees who are not represented by an employee organization.

While the undersigned does not doubt that the timing and extent of the conferral of benefits on non-union employees by a public employer may constitute impermissible discouragement of employees in the exercise of protected activity,4/ the facts of this case do not support such a finding. Instead, the record indicates that the Borough granted only one holiday to non-
unionized employees which was not included in the Charging Party's collective agreement. At the same time, a review of the collective agreement (Exhibit J-4, p. 7) and the Borough Ordinance establishing holidays for non-unionized employees (J-1) indicates that the employees represented by the Charging Party had a holiday (the day before Christmas Day) which non-unionized employees did not receive, and non-unionized employees received an additional holiday (Martin Luther King Day) which employees represented by the Charging Party did not receive. Also noteworthy is the fact that another group of unionized employees in the Borough received two personal holidays in 1981 (Exhibit J-
3, p. 11) while non-unionized Borough employees and employees represented by the Charging Party received only one personal holiday.

The evidence clearly reveals that the difference between holiday benefits granted by the Borough to non-unionized employees and those granted to employees represented by the Charging Party (as well as other unionized Borough employees) is de minimis. The Charging Party did not offer any other evidence which established anti-union animus by the Borough through the disputed personnel action. Accordingly, the undersigned concludes that the Charging Party did not prove that its existence as an employee organization was a substantial or motivating factor in the Borough's granting of a holiday to non-
unionized employees on Election Day, 1981.

Recommended Order

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Mark A. Rosenbaum

Hearing Examiner

DATED:	January 31, 1984

Trenton, New Jersey